HTL v. K,RE

FCMC1678/2013

MATRIMONIAL CAUSES NO. 1678 OF 2013

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R U L I N G
(Leave to appeal 2)
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1.  On 10 November 2015, I handed down my judgment on final ancillary relief in this case. This is the Respondent’s second application dated the 8 December 2015, for leave to appeal that judgment. I dealt with his first application seeking leave to appeal out of time in my Ruling dated the 6 January 2016. That application was dismissed as the husband was not out of time. The husband has also issued a third summons seeking leave to appeal against the order arising out of the judgment. Although it has been explained to him that it is not appropriate for him to proceed in this way the husband has insisted. It is also of note that the grounds relied upon in the husband’s affidavit in support of this summons are almost exactly the same as the affidavit filed in support of the third summons.  The solicitor for the wife submitted that this was both a waste of time and costs. I agree.

The law

2.  Section 63A of the District Court Ordinance allows for an appeal to be made to the Court of Appeal with the leave of the presiding District Court judge.  Section 63A of the District Court Ordinance provides as follows:

“Leave to appeal shall not be granted unless the judge hearing the application for leave is satisfied that the appeal has a reasonable prospect of success or there is some other reason in the interests of justice why the appeal should be heard.”

3.  It is generally accepted that there needs to be an arguable case in respect of an intended appeal, and, as I have said, that it has a reasonable chance of succeeding.  The Court of Appeal is unlikely to interfere with the exercise of the Court’s discretion unless it can be shown that it has clearly exercised that discretion incorrectly. Alternatively, it will be necessary to show that the Judge was wrong on the law or in relation to a certain legal principle.

The husband’s argument

4.  In essence the husband argues that the family law ordinances in Hong Kong are not compliant with the Basic Law. Therefore he wishes to appeal ultimately to the Court of Final Appeal so that this matter may be properly addressed. He cites in particular Article 25 on equality, Article 27 on freedom to demonstrate, Article 32 on freedom of conscience, Article 33 on choice of occupation, Article 34, Article 35, Article 36 generally, Article 37 on the right to raise a family, Article 38, Article 39, Article 42 generally, Article 82 on the right to silence and Article 104 which states that all laws should be in accordance with the Basic Law.

5.  With respect it seems to me that the husband’s thinking in this respect is somewhat muddled. I don’t accept what he says. It is simply not possible for me to give him leave to appeal on the basis of the arguments advanced. I should add that I also do not accept that there is a public policy point here that is capable of being dealt with on appeal.

6.  In addition the husband claims that the court does not have the jurisdiction to remove an acquired debt owed to him. In this case the wife. With respect, the so called acquired debt relates to maintenance pending suit. It is clearly stated in the legislation that the court has the power to vary an order for maintenance pending suit. It is also understood that because an order for maintenance pending suit is made on a broad brush basis then it is always open for maintenance to be varied at a final ancillary relief hearing when all the evidence should be before the court. Thus there is no merit in this part of the husband’s application. The court does have the power to vary the maintenance pending suit order and to backdate it.

7.  In addition the husband challenges the dismissal of his enforcement action. Given that there is now no basis for the husband’s original judgment summons it follows that it is appropriate to dismiss his application in this respect. Again there is no basis for his application for leave to appeal this point.

8.  The last matter relates to the husband’s concern in relation to certain findings of fact. Suffice it to say that I stand by what is said in the judgment; I should add that I am not of the view that this gives the husband sufficient grounds for leave to appeal in any event.

9.  All in all I do not accept that the husband has any realistic prospect of succeeding in his application.  Consequently, the husband’s summons for leave to appeal shall be dismissed. The husband shall pay the wife the costs of this application, to be taxed if not agreed on a party and party basis.

10.  The husband’s third application for leave to appeal is due to return to court on the 29 January 2016. As indicated above the affidavit in support of the summons is in almost exactly the same form as the affidavit filed in this application save that it refers to the orders made being “in full and final settlement”. The fact that the judgment is in full and final settlement of each party’s claims for all forms of ancillary relief, is an entirely appropriate order to be made in the circumstances. It does not, it seem to me, serve any useful purpose for the husband to return to the court for a third time in order to try to re argue his application for leave to appeal. This is an abuse of the process. It also seems to me that the husband’s behaviour is verging on the vexatious. Thus I would urge the husband to withdraw his third summons by agreement with the other side on the basis that there be no order as to costs. In the event that he insists on returning to court for a third time I will invite the wife’s solicitor to make whatever further applications and/or submissions he deems appropriate in all the circumstances of the case.